Should Mom Be Allowed to Move Child Away from Dad to Israel, and Despite COVID-19 Travel Warnings?
In a recent ruling, the court introduced the issues this way:
This is a case about family violence, whether a father’s parenting time should be supervised or terminated and whether a mother and child should be allowed to relocate to Israel.
The separated parents of an 8-year-old child had several issues to resolve as part of their divorce, but key among them was whether the mother should be allowed to relocate permanently from Toronto to Israel with the child. This move was motivated in part by the mother’s concern over the father’s violent tendencies, and his unwillingness to comply with court orders or cooperate with child protection services.
As the court described it:
The mother feels threatened and unsafe because of the father’s conduct. She seeks an order allowing her to relocate to Israel where her family lives, and she grew up. It is her position that this is the only way she can safeguard the child’s emotional and physical well-being.
For his part, the father’s position was that all court orders were “illegal” and based on “fraudulent evidence”. He claimed they operated as a “theft of his role as a parent”, and that the complicit mother was a “parental alienator” whose “lies” were revenge for him not granting her a Jewish religious divorce. And, while he conceded the child enjoyed visiting Israel and the extended family that lives there, he claimed that at the age of six the child had said he did not want to live there permanently.
The court found the father’s evidence on all these points unreasonable, and unreliable. It added that the father had never paid child support, had vowed not to obey any court orders, and had his pleadings previously struck. He also did not recognize his own need for professional help for mental health issues.
“After scrutinizing the evidence and her stated reasons for wanting to relocate, the court accepted that they ‘strongly support’ her request” – Adam Borer, Associate Lawyer
In a nearly 500-paragraph ruling, the court then considered the mother’s relocation request, which was brought in keeping with the recent amendments to the Divorce Act which clarify the law and specify the procedural steps. After scrutinizing the evidence and her stated reasons for wanting to relocate, the court accepted that they “strongly support” her request.
In this context, and with reference to the ongoing COVID-19 pandemic, the court specifically addressed the father’s concerns over the safety of the mother’s proposal:
During the father’s final submissions, he presented a copy of a Government of Canada travel advisory for Israel advising against travel to certain parts of Israel. … the father asks the Court to take judicial notice of the travel advisory. He argues that this advisory shows it is not safe to relocate to Israel.
The current travel advisory for Israel, the West Bank and the Gaza Strip was last updated on July 7, 2021.
This travel advisory system defines four levels of risk: “Exercise normal security precautions”; “Exercise a high degree of caution”; “Avoid non-essential travel”; and “Avoid all travel”. …
In areas other than the Gaza strip, the West Bank and the border with the Gaza strip, the current travel advisory states that travellers to “Israel” are told to exercise a “high degree of caution”. This covers the Tel Aviv area. The advisory states what it means by this warning for travel to the rest of Israel: “There are identifiable safety and security concerns, or the safety and security situation could change with little notice. You should exercise a high degree of caution at all times, monitor local media and follow the instructions of local authorities.”
However, the mother was seeking to relocate with the child to her family home in Tel Aviv specifically, where they had travelled to many times before, including summer visits. The father, who had actually married the mother in that city, provided no evidence that she and the child would not be safe there. The child had an existing bond with family there, would have ongoing and abundant family support, and already spoke Hebrew well enough. He would be eligible for Israeli citizenship due to both parents’ heritage.
The court was also satisfied that the mother would “at all times exercise the necessary high degree of caution in Israel as she has done during her summer visits”. It concluded:
I find that the mother’s request to relocate with the child to Israel is in the child’s best interests. There is no reasonable chance that the mother can protect the child from the father’s harmful conduct if she must remain in Toronto. If she remains in Toronto, the father will continue to threaten her emotional and financial stability. A relocation to Israel will provide the mother and child with the necessary stability and will decrease the risk of harm from the father’s conduct.
With that said, the court recognized that in the child’s best interests the father should still have “remote” access to the child – but only on specified terms. It agreed with the mother’s suggestion that he should have parenting time via FaceTime or Zoom, as long as it was supervised by a professional supervision service, at the father’s expense. Also, if he chose to travel to Israel, he could see the child if professionally supervised.
For the full text of the decision, see:
N.S. v. A.N.S., 2021 ONSC 5283
